The Independence of the South African Judiciary

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Independence of the South – African judiciary

1. Introduction3
2. The separation of powers and checks and balances4
3. Problems with judicial independence 6


The Independence of the South African Judiciary
1. Introduction

The concept of judicial independence is as old as constitutionalism itself. Judicial independence is “the capacity of the courts to perform their constitutional function free from actual or apparent dependence upon any person or institutions, including, in particular, the executive arm of government, over which they do not exercise direct control”.

During recent years there has been considerable controversy surrounding the judiciary in South Africa, especially recently over the five judicial reform bills released by the Minister of Justice in December of 2004. In the pre-1994 South Africa, courts didn’t have the capacity to challenge the substance of a new law or Act; only the procedure could be disputed if a new law or Act came to life without the proper steps being followed. The House of Parliament was considered sovereign and all other government institutions subservient to it. The independence of the judiciary is one of the core values that the African National Congress fought for, in order to ensure that there would be a system in place that could evaluate and deliver reckoning not only on the behaviour of the everyday citizen, but the ensure that there is a power or system sovereign to that of government that could independently review the laws it instils and direct power equally between the different branches and levels of government.

In South Africa, the legacy of apartheid is still felt and transformation of society continues to be a key point of debate. In the past 18 years, the transformation of the South African judiciary has progressed rather rapidly: race diversity has improved, judges have promoted constitutional values and courts have made independent decisions. At the same time, there are major challenges to the transformation of the judiciary. Problems of access, poor court management and inefficiency affect the delivery of justice.

In South – Africa the Administrative law and The Constitution preside over matters such as judicial independence. Judicial independence is intertwined with the doctrines of separation of powers and of checks and balances, which are associated with democracy.

2. The doctrine of the separation of power and checks and balances

As the Constitutional Court has indicated , the doctrine recognises the functional independence of the three branches of government (Executive, Legislative and Judicial) while the checks and balances associated with the doctrine prevents the branches from usurping each other’s power.

This principle was also entrenched in the Constitutional Court’s judgement in the Glenister Case Judge NGCOBO CJ made reference to the importance of the judicial function in maintaining the independence of our law between various government branches: “Courts have traditionally resisted intrusions into the internal procedures of other branches of government. They have done this out of comity and, in particular, out of respect for the principle of separation of powers. But at the same time they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution. To reconcile their judicial role to uphold the Constitution, on the one hand, and the need to respect the other branches of government, on the other hand, Courts have developed a ‘settled practice’ or general rule of jurisdiction that governs judicial intervention in the legislative process.”

Judicial independence set out in section 165 of the South African Constitution, which currently provides: (2)The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. (3) No...
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